The Association is grateful to Messrs. Aus Ship P&I for contributing to this update.
The situation
It is not an uncommon enquiry for a member to query whether a port is safe when subject to swells. Indeed in some dramatic cases like the MV Ocean Victory casualty in 2006 significant environmental forces can be the root cause of a major incident. In other cases the consequences are much less dramatic, but broken mooring lines and damaged berth fenders as well as scrapes and bumps on the hull will still lead to losses and claims.
When an incident happens, an often raised issue is the question: is the port safe?
The law on safe ports
It is worth repeating the often quoted terms of the seminal case: The Eastern City 1958 2 Lloyd's Rep. 127:
"A port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship."
Each section of this well worded "test" of Sellers L.J. is important and it is also necessary to consider that the port must be safe both (a) prospectively (for the time of arrival) safe at the time the order is given to go there and (b) actually safe at the time the vessel arrives.
It may therefore be that a port which is safe on the date the order is given by charterers to proceed there, is no longer safe by the time the vessel arrives. Seasonal factors (ice, severe weather, etc.) can have a significant role to play in that regard.
Furthermore it is important to consider that not every berth at a given port will necessarily be affected in the same way, which means that members need to consider more than just the general situation at the port and also the specific situation at the intended berth. This will also be significant in case members have voyage charterparties with safe berth rather than safe port warranties, as this changes the nature and period of effect of the warranty.
The Port of Geraldton, Australia
Skuld correspondents Aus Ship P&I recently gave advice to a Skuld member on the specific Port of Geraldton, Australia and attached is a note on the issue of swells at that port.
It should be noted that the swells are seasonal and mat be significantly impacted by the presence or absence of storms further out in the Indian Ocean.
Furthermore the swells affect different berths to a different degree, meaning that one particular berth may not be accessible for a given specific vessel, but another berth - less affected by swells - could be accessible and safe.
The Port of Geraldton operates a system of advance warning, possibly by several days, based on weather reports and modelling. If unfavourable conditions are expected, the port will issue a notice of closure.
Loss prevention advice - Practical
While the Port of Geraldton does operate an advanced system, members are likely to call at many ports which do not have such an early warning system in place.
It will be necessary for members to check in advance of arrival whether a given port and a given berth are commonly subject to significant environmental forces, or subject to seasonal variation, or perhaps affected by an unusual and unseasonal event.
A careful assessment has to be made each time a vessel berths as to whether the berth is safe at that time, and whether there is any incoming weather or wave factor which may change the safety of the berth for the specific vessel at hand.
This requires good advance planning, an awareness of the issue by both vessel and shore support as well as diligent follow up, perhaps on a daily basis. Local agents should be a first point of contact for relevant information and updates, but if necessary the Club's correspondents are available to assist.
Ensuring that a vessel has sufficient mooring lines of suitable standard and quality on board, and that these are set up in a safe and proper manner, is likely to be the responsibility of the owner under most common charterparty provisions.
Only if the vessel meets circumstances which (referring back to The Eastern City) she can not avoid by "the exercise of good navigation and seamanship" may there be the basis for an unsafe port allegation. Having the right equipment on board, using it properly, and paying attention to notices and warnings from the ports / agents is likely to be part of the exercise of good seamanship as well as owner's further obligations as to the condition of the vessel, her equipment and ability of the crew on board.
Chartering advice
If members are planning to call at a port or berth where the vessel may be subject to environmental forces such as significant swells, and these may necessitate the vessel to un-berth, leave the port and re-berth later, then it would be prudent to address this situation in the charterparty terms in advance.
Every charterparty includes an apportionment of risk, in terms of cost, time and liabilities, and it is useful to arrange in advance who shall be any particular risk and to what extend.
Time lost and cost incurred waiting for a berth to re-open, or shifting in and out when the berth is subject to significant swells, need to be addressed so that it is clear who is taking on this risk.
The more time is spent on preparing bespoke charter terms the less time - and money - is spent later arguing about what these terms mean and who will have to bear the risk of the loss.
The Association's FD&D service can assist members in drafting and reviewing their contracual arrangements, with the aim of ensuring solid charterparty positions.